Australia: Are we nearly there yet? Yes we are!! The status of planning law reform in Queensland

On 11 May 2016 a milestone was reached in the reform of Queensland planning legislation with the passing of the Planning Bill 2015 and its associated legislation.

The package of laws won't take effect until 2017, so that local governments in particular can ready themselves for changes in practice. That said, the new era of planning law doesn't wholly shift from what we have become familiar with over the last (nearly) two decades. This article draws out the key features of the bills, along with highlighting some of their primary points of difference from what we have now.

We can now report that we have a suite of bills which have been passed by the Palaszczuk government on 11 May 2016. The Bills, which are not expected to commence until 2017, include:

  • The Planning Bill 2015;
  • The Planning and Environment Court Bill 2015; and
  • The Planning (Consequential) and Other Legislation Amendment Bill 2015
    (the Bills)

It was pleasing to hear during the second reading speech for the Bills given by the Honourable Jackie Trad, the Deputy Premier, Minister for Infrastructure, Local Government and Planning and Minister for Trade and Investment that "many of the fundamental elements of the planning system under the current Sustainable Planning Act 2009 are working well. These have been retained in the Planning Bill..".  So despite the new names, the Bills will be largely familiar in operation and intent to practitioners.

So – what are the highlights of the Bills?

  1. The purpose provisions focus on the attainment of ecological sustainability, and advancing the purpose of the Act extends to include reference to 'ethical decision-making processes';
  2. The suite of planning instruments contemplated in the Bills no longer include State planning regulatory provisions or the Queensland planning provisions (although for example, in relation to infrastructure charges – a regulation is still contemplated to prescribe a maximum amount for each adopted charge, and a regulation is able to prescribe requirements (the 'regulated requirements' of a local planning instrument) – meaning whilst these instruments we are presently familiar with will no longer exist in legal form, their content is likely to be preserved elsewhere);
  3. The Minister will be obligated to make guidelines and rules about various matters (see section 17 of the Planning Bill 2015);
  4. An express limitation of liability will apply to local governments for anything it does, or does not do in compliance with a direction of the Minister, or any action taken by the Minister in relation to existing/proposed local planning instruments or designations, or proposed amendments of local planning instruments or designations;
  5. Designations of premises for development of the types of infrastructure that are prescribed by regulation, by both the Minister or a local government as designator, are retained;
  6. 'Categorising instruments' are introduced – being either a regulation, or a 'local categorising instrument' (i.e. planning schemes, TLPIs or variation approvals) to the extent they do any or all of the following:
    1. Categorise development as prohibited, assessable or accepted development (accepted development being development for which a development approval is not required);
    2. Specify the categories of assessment required for different types of assessable development (there are two categories of assessment for assessable development – code and impact assessment);
    3. Set out the matters (the 'assessment benchmarks') that an assessment manager must assess assessable development against;
  7.  'Assessment benchmarks':
    1. do not include a matter of a person's opinion, a person's circumstances (financial or otherwise), a matter prescribed by regulation, or, in the case of code assessment – a strategic outcome under section 16(1)(a) of the Planning Bill 2015;
    2. might, for example take the form of a code, a standard, or an expression of intent for a zone or precinct; and
    3. are given effect through the rules for assessing and deciding development applications;
  8. The categories of development are prohibited, assessable (code or impact assessable) and accepted;
  9. 'Variation requests' replace the current section 242 preliminary approval concept;
  10. In the case of code assessment, it really will be a bounded assessment.  It may only be carried out against the assessment benchmarks in a categorising instrument for the development, and having regard to any matters prescribed by regulation for paragraph 45(3) of the Planning Bill 2015;
  11. Code assessable applications (absent a variation request) must be approved to the extent the development complies with all of the assessment benchmarks for development.  Otherwise the rules binding an assessment manager for code assessment are:
    1. The assessment manager may decide to approve the application even if the development does not comply with some of the assessment benchmarks;
    2. The assessment manager may impose development conditions on an approval; and
    3. The assessment manager may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions;
  12. In the case of impact assessment, it remains broader.  It must be carried out against the assessment benchmarks in a categorising instrument for the development, and having regard to any matters prescribed by regulation for paragraph 45(5)(ii) of the Planning Bill 2015.  It may be carried out against, or having regard to, any other relevant matter, other than a person's personal circumstances, financial or otherwise;
  13. Exemption certificates are introduced in section 46 of the Planning Bill 2015, and where they are given, there is an obligation on the local government or the chief executive (whoever gave the exemption certificate) to give notice about the exemption certificate on their website;
  14. Alternative assessment managers are envisaged under section 48(3) of the Planning Bill 2015;
  15. The concept of referral agencies is retained – although it will fall to a regulation to nominate if a referral agency may only give advice (see section 56(5) of the Planning Bill 2015).
  16. In terms of the making of development applications, change applications and extension applications – an element of discretion is built into the recipients' correct receipt of the application (see sections 51(4), 79(20 and 86(3) of the Planning Bill 2015 – as amended during the second reading speech);
  17. Decision notices for assessable development must now include (in amongst other things):
    1. Any relevant matters under which impact assessment was attended with regard to/against in the assessment per section 45(5)(b) (and referenced in section 63(5)(c)(i) of the Planning Bill 2015); and
    2. If the development application was approved, or approved subject to conditions – and the development did not comply with any of the benchmarks – the reasons why the application was approved despite the development not complying with any of the benchmarks;
  18. The 'no conflict unless sufficient grounds' provisions have been removed in the Planning Bill 2015;
  19. Inconsistencies between conditions, and development conditions of earlier development approvals in effect for development are contemplated in the Planning Bill 2015, and a mechanism for overcoming them in limited instances is provided (see section 66(2) of the Planning Bill 2015, as varied during the second reading speech).
  20. Changing development approvals both during the appeal period and after the appeal period are still catered for – and where the change is being sought after the appeal period, to a decision initially given because of an order of the Court, it will only need to go back to the Court if:
    1. The change application is not for a minor change; and
    2. There were properly made submissions for the development application (see section 78(3)(b) of the Planning Bill 2015);
  21. Change applications after the appeal period can be for either 'minor changes' or changes extending beyond that limitation.  Where the changes being sought are not minor changes, effectively the request will be guided by the 'development applications' and 'assessing and deciding development application' provisions of the Planning Bill 2015;
  22. The defined concept of 'minor change' no longer extends to include the limb regarding the likelihood of the changes attracting submissions if given the opportunity.  However – this threshold will not be entirely removed from the picture – instead popping up in the context of the development assessment rules the Minister must make (see section 68 of the Planning Bill 2015, as amended).  Whilst it is not entirely clear from the wording as amended, on balance it would seem that the 'likelihood of further submissions' consideration will be enlivened when not minor changes are made to an application that has not been decided, or a development approval, where the requirement to re-notify is being regarded. 
  23. The Minister retains certain powers of direction and call-in under the Planning Bill 2015;
  24. The infrastructure provisions remain largely unchanged (aside from terminology and consistency changes) from how they currently operate;
  25. The offences and enforcement provisions are still contained in the  Planning Bill 2015, while new provisions regarding inspectors and their entry into places as well as other powers are provided.
  26. Appeal rights to the tribunal and the Planning and Environment Court are provided in the Planning Bill 2016, although the Court's continued existence is confirmed in the Planning and Environment Court Bill 2015;
  27. The miscellaneous provisions we are all accustomed to (going to the protection of existing rights, public access to documents and the like) are contained in Chapter 7 of the Planning Bill 2015 – as are the provisions concerning urban encroachment and party houses.  There are also new provisions, such as an obligation on the SARA to refer development applications to the Queensland Heritage Council where they would destroy or substantially reduce the cultural heritage significance of a State heritage place (see section 276A of the Planning Bill 2015 as amended during the second reading speech).
  28. The costs provisions remain as contemplated by the Palaszczuk government (i.e. other than for discrete carve outs – like enforcement proceedings and where the Court has ordered otherwise, the general rule will be that each party bears its own costs).

Overall, the Planning Bill 2015 and the Planning and Environment Court Bill 2015 are an improvement to our current system and given the lag time now between their passing and their commencement, should be digested as bed time reading over the coming months by practitioners and the industry alike.

It is a pleasant relief to be at the end of the reform agenda which has spanned two governments, and have Bills which are the product of not only comprehensive political input, but also substantive community and industry comment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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